Security Agreement (2005)Full Document 

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SECURITY AGREEMENT
by and among
SMART MODULAR TECHNOLOGIES , INC.
THE GUARANTORS PARTY HERETO
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
 
Dated as of March 28, 2005
 

 


 

TABLE OF CONTENTS
         
    Page  
 
1. DEFINITIONS AND CONSTRUCTION
    1  
1.1 Definitions
    1  
1.2 Code
    7  
1.3 Indenture
    7  
1.4 Construction
    7  
1.5 Schedules and Exhibits
    7  
 
       
2. CREATION OF SECURITY INTEREST
    7  
2.1 Grant of Security interest
    7  
2.2 Negotiable Collateral
    7  
2.3 Collection of Accounts, General Intangibles, and Negotiable Collateral
    8  
2.4 Filing of Financing Statements; Commercial Tort Claims; Delivery of Additional Documentation Required
    8  
2.5 Power of Attorney
    9  
2.6 Right to Inspect
    9  
2.7 Control Agreements
    9  
2.8 Junior Priority Nature of Liens
    10  
 
       
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
    10  
3.1 No Encumbrances
    10  
3.2 Location of Inventory and Equipment
    10  
3.3 Jurisdiction of Organization; Location of Chief Executive Office; FEIN; Organizational ID Number; Commercial Tort Claims
    10  
3.4 DDAs
    11  
3.5 Covenants
    11  
 
       
4. TRUSTEE’S RIGHTS AND REMEDIES
    11  
4.1 Rights and Remedies
    11  
4.2 Remedies Cumulative
    12  
 
       
5. WAIVERS; INDEMNIFICATION
    13  
5.1 Demand; Protest; etc
    13  
5.2 Trustee’s Liability for Obligor Collateral
    13  
5.3 Indemnification
    13  
 
       
6. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
    13  
 
       
7. AMENDMENTS; WAIVERS
    14  
7.1 Amendments and Waivers
    14  
7.2 No Waivers; Cumulative Remedies
    14  
 
       
8.TRUSTEE
    14  
8.1 Costs and Expenses
    14  
8.2 Obligor Collateral and Guaranty Matters
    14  

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9. GENERAL PROVISIONS
    14  
9.1 Effectiveness
    14  
9.2 Section Headings
    15  
9.3 Interpretation
    15  
9.4 Severability of Provisions
    15  
9.5 Counterparts; Telefacsimile Execution
    15  
9.6 Revival and Reinstatement of Obligations
    15  
9.7 Termination; Release
    15  
9.8 Notices
    15  
EXHIBITS AND SCHEDULES
     
Exhibit A
  Form of Collateral Access Agreement
Exhibit B
  Form of Control Agreement
Exhibit C
  Form of Copyright Security Agreement
Exhibit D
  Form of Patent Security Agreement
Exhibit E
  Form of Trademark Security Agreement
 
   
Schedule A
  Non-Pledgor Subsidiaries
Schedule 3.2
  Locations of Inventory and Equipment
Schedule 3.3(a)
  Jurisdiction of Organization
Schedule 3.3(b)
  Chief Executive Offices
Schedule 3.3(c)
  FEINS
Schedule 3.3(d)
  Commercial Tort Claims
Schedule 3.4
  Deposit Accounts and Securities Accounts
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SECURITY AGREEMENT
     THIS SECURITY AGREEMENT (this “Agreement”) is entered into as of March 28, 2005 (as amended, amended and restated, supplemented or otherwise modified from time to time) among SMART MODULAR TECHNOLOGIES (WWH), INC., an exempted company organized under the laws of the Cayman Island (the “Company”). THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO (“Guarantors”, and together with the Company, the “Obligors”) in favor of U.S. BANK NATIONAL ASSOCIATION, as trustee (“Trustee”) pursuant to the Indenture (the “Indenture”) dated as of the date hereof by and among the Company, the guarantors party thereto and the Trustee, acting for and on behalf of the holders of the Notes described below (the “Noteholders”).
RECITALS
     WHEREAS, The Company has issued, on the date hereof, Senior Secured Floating Rate Notes due 2012 in the aggregate principal amount of $125,000,000 (collectively, the “Notes”);
     WHEREAS, the Noteholders have authorized the Trustee to enter into this Agreement; and
     WHEREAS, in order to induce the Noteholders to purchase the Notes, each Obligor has agreed to secure the payment and performance of the Obligations (as hereinafter defined) and to accomplish same by (i) executing and delivering to the Trustee this Agreement and (ii) delivering to the Trustee any and all other documents required hereunder.
     NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

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